Freedom of Establishment and Free Movement of Services (EU Exit) Regulations 2019

Baroness McIntosh of Pickering Excerpts

Wednesday 23rd October 2019 Lords Chamber

[Lord Pannick (CB)]

My Lords, I share the concerns expressed by the noble Lords, Lord Stevenson and Lord Oates. In his opening remarks, the Minister emphasised that these regulations impose no new obligations, but that is not the concern; the concern is whether they remove existing rights. He was anxious to downplay their impact, yet at the same time he told the House that they are necessary because, unless they are implemented, this country might face problems at WTO level. I am puzzled as to how those two matters can be reconciled. I would be grateful for his elaboration on that point.

In any event, it seems to me, as it does to the noble Lords, Lord Stevenson and Lord Oates, that these are very complex matters, and in my view they are highly inappropriate for a statutory instrument. They surely cry out for detailed assessment as to their purpose and effect as a matter of policy by primary legislation. The method being used by the Government is delegated legislation under Section 8 of the European Union (Withdrawal) Act 2018. Noble Lords will recall the sensitivity of that issue, the care and attention which this House in particular gave to the powers being conferred on the Government and its anxiety to constrain the use of such powers so that they did not relate to matters of policy. As the noble Lord, Lord Oates, indicated by reference to the speech of David Davis, the then Secretary of State, that was the view of the Government themselves.

I remind the House that the Government have made it clear from the outset that these delegated powers would be used only in the most circumscribed way. The White Paper that preceded the publication of the Bill Legislating for the United Kingdom’s Withdrawal from the European Union said at paragraph 3.17:

“Crucially, we will ensure that the power”—


that is, the power to make delegated legislation—

“will not be available where Government wishes to make a policy change which is not designed to deal with deficiencies in preserved EU-derived law arising out of our exit from the EU”.

The Explanatory Notes that accompanied the EU withdrawal Bill 2018 said at paragraph 14:

“The Bill does not aim to make major changes to policy or establish new legal frameworks in the UK beyond those which are appropriate to ensure the law continues to function properly from day one. The Government will introduce separate primary legislation to make such policy changes which will establish new legal frameworks”.


It seems to me, as it does to the noble Lords, Lord Stevenson and Lord Oates, that these regulations are in breach of those statements. I share the regret which the amendment proposed by the noble Lord expresses.

[Baroness McIntosh of Pickering (Con)]

My Lords, since the noble Lord, Lord Oates, and I entered the House together on the same day, I always follow closely what he says. He said that the position of UK nationals could be placed in jeopardy in the member states and other countries mentioned in the statutory instrument.

Paragraph 2.4 of the Explanatory Memorandum states:

“Directly effective rights derived from TFEU Articles are based on reciprocal relationships between EU Member State territories. Directly effective rights derived from EU bilateral and multilateral agreements are based on reciprocal relationships between EU Member State territories and certain non-EU territories”.


The Parliamentary Under-Secretary of State for the department who introduced the statutory instrument in Committee in the other place said that a reason for it was sovereignty. He stated:

“Given that the rights will no longer be reciprocated, failing to disapply the rights in UK law would leave a lack of clarity as to whether EU nationals and nationals of countries with associated agreements had additional rights, compared with nationals of other countries, to challenge the laws and decisions of UK authorities after Brexit”.—[Official Report, Commons, Third Delegated Legislation Committee, 21/10/19; col. 4.]


The SI and this debate so far seem to be silent on what the position will be of British nationals working, either having established their service or with free movement to provide services, in another EU country.

I would be grateful if my noble friend the Minister could put my mind at rest by saying that those people will not be disadvantaged. Are we moving away from reciprocity? Will he confirm that we are seeking to negotiate their future rights? What is the position of lawyers? I remind my noble friend that I am a non-practising Scottish advocate who practised EU law in Brussels. I would be very pleased to know that these rights will remain reciprocated after 31 October.

[The Lord Bishop of Salisbury]

My Lords, I support the regret amendment tabled by the noble Lord, Lord Stevenson, and echo the sorts of points that have been made already. One strength of the Church of England is that there is the Diocese in Europe and a Church of England presence in Europe that will continue beyond our membership of the European Union. The Bishop in Europe, in response to this SI, said that: “From a Brussels perspective, we are aghast that EU and EAA citizens’ rights in the UK could be restricted in this way. It surely invites reprisals on UK citizens running businesses in the EU”.

This is not just a technical issue. This is an issue about the way in which we see people who live in this community and the way in which UK citizens will be seen within the EU. If this is preparation for the theoretical possibility of a no-deal Brexit, it is profoundly unhelpful to the people directly named within it and affected by it and the way that they are viewed within their own community here in the UK. It arises, as the Minister said, because of a conflict with WTO terms for most favoured nation principles, but it also raises questions about the reliability of government in relation to the continuing status of EU/EAA citizens within the UK and, by implication, of UK citizens within the EU.

This seems to me to be a very good example of why the withdrawal Bill will need careful scrutiny regarding what might or might not be involved in our taking back control. What do the Government see as the implications of this matter and proceeding in this way on UK citizens in the EU?

--- Later in debate ---

[Lord Duncan of Springbank]

No, I will make some progress if I may. This is complicated enough, and I fear I have to answer noble Lords’ questions before they ask new ones.

The noble Lord, Lord Oates, was very clear in some of the points he raised. That is why I am trying to be as unambiguous as I possibly can. He sought explicitness, and I am trying to give that. The self-employed will be unaffected if they are EU nationals. Those providing services will be unaffected, and their continued ability to provide those services will go undiminished. Those operating businesses will be able to do so going forward undiminished. The laws that underpin them remain as they are, both in our domestic law and in the retained EU law. There are no new restrictions whatever placed upon these individuals in this. That is why I am trying to point out that the limited impact is just that—a limited impact.

This will have no impact on the settled status of anybody coming in; for those noble Lords who are concerned about migration, this suite of statutory instruments explicitly carves out any issues of migration to ensure that they are considered carefully during the passage of the immigration Bill, which is primary legislation and will afford this House and the other place the full rights and abilities to inquire into that. So again, there is no attempt to pull the wool over anyone’s eyes—quite the reverse. In seeking to move this into primary legislation where it touches upon immigration, we are ensuring that this House has the full panoply of opportunity to explore this, as it will need to do going forward. That is why I refute the point of the noble Lord, Lord Oates, that this is a clear breach. I do not believe that it is.

The noble Lord, Lord Pannick, is quite right when he says that this places upon us no new obligations. There are no new obligations which rest upon EU citizens; they can enjoy the rights that they have been able to do so to date. The question is whether the disapplication materially impacts on, for example, the ability of the gentleman mentioned by the noble Lord, Lord Campbell-Savours, to do his business. It does not. The noble Baroness, Lady Bull, raised the question of the restaurateur who operates a Turkish restaurant and whether it places material changes upon them. No, it does not. It is important to stress that we are not seeking in any way to erode the rights currently enjoyed by these EU citizens. However, I should say that this would be far better addressed through an implementation agreement, and ultimately by that future relationship, whereby we can put to rest any suggestion that this Government are seeking to undermine the rights of EU individuals to undertake their legitimate exercises.

The question of what happens for UK citizens who work abroad is more challenging. Again, we cannot insist upon such reciprocity, since it rests with each individual member state, and we cannot offer guarantees on their behalf.

[Baroness McIntosh of Pickering]

I did ask my noble friend to put our minds at rest and specify what talks are happening at this time with other member states.

[Lord Duncan of Springbank]

I wish I could give my noble friend the reassurance she seeks, but these elements remain part of the future relationship negotiations and there has been unwillingness on the part of individual member states to discuss these matters. Much as I would like to be able to give her confidence on that matter, I cannot. That will be part of the future relationship negotiations, and I hope we can move on to that as swiftly as we can.